B-177518, FEB 16, 1973, 52 COMP GEN 519

B-177518, FEB 16, 1973, 52 COMP GEN 519

AGRICULTURE DEPARTMENT - LOSSES SUSTAINED BY PRODUCERS, ETC. - TURKEY GROWERS - INDEMNIFICATION THE LOSSES SUSTAINED BY FIVE TURKEY GROWERS IN CONNECTION WITH THE DEPARTMENT OF AGRICULTURE'S QUARANTINE PROGRAM FOR THE CONTROL AND ERADICATION OF EXOTIC NEWCASTLE DISEASE - A HIGHLY VIRULENT COMMUNICABLE DISEASE OF POULTRY - WHICH WAS IMPOSED UNDER THE DEPARTMENT'S AUTHORITY TO PREVENT THE INTERSTATE DISSEMINATION OF A DISEASE, MAY NOT BE INDEMNIFIED UNDER THE TERMS OF 21 U.S.C. 114A OR PURSUANT TO THE AUTHORITY IN 7 U.S.C. 612C. 21 U.S.C. 114A AUTHORIZES INDEMNITY PAYMENTS FOR THE DESTRUCTION OF ANIMALS, INCLUDING POULTRY, WHEN PERFORMED UNDER THE SUPERVISION OF THE DEPARTMENT, WHEREAS THE GROWERS SOLD THEIR FLOCKS AND EGGS UPON THEIR OWN INITIATIVE, A DISPOSITION THAT IS NOT CONSIDERED A "CONSTRUCTIVE DESTRUCTION" THAT RESULTED FROM THE QUARANTINE, 7 U.S.C. 612C IS INTENDED FOR APPLICATION ONLY WHEN AN ENTIRE COMMODITY IS IN DISTRESS AND, FURTHERMORE, INDEMNITY PAYMENTS HAVE BEEN FOUNDED UPON SPECIFIC LEGISLATION.

TO THE SECRETARY OF AGRICULTURE, FEBRUARY 16, 1973:

BY LETTER DATED NOVEMBER 22, 1972, THE ACTING SECRETARY OF AGRICULTURE REQUESTED OUR DECISION CONCERNING THE AUTHORITY OF THE DEPARTMENT OF AGRICULTURE TO MAKE INDEMNITY PAYMENTS TO FIVE CALIFORNIA TURKEY GROWERS FOR LOSSES SUSTAINED IN CONNECTION WITH THE DEPARTMENT'S PROGRAM FOR THE CONTROL AND ERADICATION OF EXOTIC NEWCASTLE DISEASE.

IN NOVEMBER 1971 EXOTIC NEWCASTLE DISEASE - A HIGHLY VIRULENT, COMMUNICABLE DISEASE OF POULTRY - BROKE OUT IN CERTAIN AREAS OF THE UNITED STATES. IN DECEMBER 1971 YOUR DEPARTMENT RESPONDED TO THIS SITUATION BY IMPOSING A FEDERAL QUARANTINE IN, AMONG OTHER AREAS, PORTIONS OF SOUTHERN CALIFORNIA. THIS ACTION WAS UNDERTAKEN PURSUANT TO SECTION 2 OF THE ACT APPROVED FEBRUARY 2, 1903, AS AMENDED, 21 U.S.C. 111, AND THE ACT APPROVED MARCH 3, 1905, AS AMENDED, 21 U.S.C. 123-127. SECTION 2 OF THE 1903 STATUTE, AS AMENDED, AUTHORIZES THE SECRETARY OF AGRICULTURE TO MAKE SUCH REGULATIONS AND TAKE SUCH MEASURES AS HE MAY DEEM PROPER TO, INTER ALIA, PREVENT THE INTERSTATE DISSEMINATION OF THE CONTAGION OF ANY CONTAGIOUS, INFECTIOUS, OR COMMUNICABLE DISEASE OF ANIMALS AND/OR LIVE POULTRY. SECTION 1 OF THE 1905 STATUTE, AS AMENDED, 21 U.S.C. 123, PROVIDES IN PART:

THE SECRETARY OF AGRICULTURE IS AUTHORIZED AND DIRECTED TO QUARANTINE *** ANY PORTION OF ANY STATE *** WHEN HE SHALL DETERMINE THE FACT THAT ANY ANIMALS AND/OR LIVE POULTRY IN SUCH STATE *** ARE AFFECTED WITH ANY CONTAGIOUS, INFECTIOUS, OR COMMUNICABLE DISEASE OF LIVESTOCK OR POULTRY OR THAT THE CONTAGION OF ANY SUCH DISEASE EXISTS OR THAT VECTORS WHICH MAY DISSEMINATE ANY SUCH DISEASE EXIST IN SUCH STATE ***.

THE FEDERAL QUARANTINE RELATING TO EXOTIC NEWCASTLE DISEASE PROHIBITED, EXCEPT AS OTHERWISE PROVIDED, THE INTERSTATE MOVEMENT FROM THE QUARANTINE AREA OF ANY POULTRY OR EGGS. 9 CFR SEC. 82.4, AS AMENDED, 36 F.R. 25218(DECEMBER 30, 1971). AN EXCEPTION WAS PROVIDED TO PERMIT THE INTERSTATE MOVEMENT OF LIVE POULTRY SOLELY TO FEDERALLY INSPECTED SLAUGHTERING ESTABLISHMENTS FOR IMMEDIATE SLAUGHTER AND UPON PRIOR FEDERAL APPROVAL. AN EXCEPTION WAS ALSO MADE TO PERMIT INTERSTATE MOVEMENT OF "TABLE EGGS AND EGGS FOR PROCESSING" UNDER CERTAIN CONDITIONS. THE STATE OF CALIFORNIA QUARANTINED THE SAME AREA AND IMPOSED SIMILAR PROHIBITIONS AND RESTRICTIONS WITH RESPECT TO INTRASTATE MOVEMENT FROM THE QUARANTINE AREA. ON MARCH 10, 1972, THE QUARANTINE WAS EXTENDED BY YOUR DEPARTMENT AND THE STATE OF CALIFORNIA TO ENCOMPASS ADDITIONAL AREAS OF SOUTHERN CALIFORNIA, INCLUDING THE RANCHES OF THE FIVE TURKEY GROWERS HERE INVOLVED.

IN DECEMBER 1971 YOUR DEPARTMENT ENTERED INTO A COOPERATIVE AGREEMENT WITH THE STATE OF CALIFORNIA PURSUANT TO SECTION 11 OF THE ACT APPROVED MAY 29, 1884, AS AMENDED, 21 U.S.C. 114A, WHICH PROVIDES IN PART:

THE SECRETARY OF AGRICULTURE, EITHER INDEPENDENTLY OR IN COOPERATION WITH STATES *** IS AUTHORIZED TO CONTROL AND ERADICATE ANY COMMUNICABLE DISEASES OF LIVESTOCK OR POULTRY *** INCLUDING THE PAYMENT OF CLAIMS GROWING OUT OF DESTRUCTION OF ANIMALS (INCLUDING POULTRY), AND OF MATERIALS, AFFECTED BY OR EXPOSED TO ANY SUCH DISEASE, IN ACCORDANCE WITH SUCH REGULATIONS AS THE SECRETARY MAY PRESCRIBE.***.

THE ACTING SECRETARY'S LETTER READS, IN PART:

THE FLOCKS OF THE FIVE TURKEY GROWERS *** WERE SUBSTANTIAL IN SIZE, I.E., 2200, 3000, 6000, 5000 AND 12,000 BREEDERS RESPECTIVELY. THE GROWERS HAVE SUSTAINED SUBSTANTIAL ECONOMIC LOSSES AS A RESULT OF THE QUARANTINE IMPOSED UPON THE AREA WHICH ENCOMPASSES THEIR RANCHES. THESE GROWERS RAISED TURKEY BREEDER FLOCKS AND PRODUCED HATCHING EGGS WHICH NORMALLY WERE SHIPPED INTERSTATE AS WELL AS INTRASTATE. AS POINTED OUT ABOVE, THE FEDERAL QUARANTINE GENERALLY PROHIBITED THE INTERSTATE MOVEMENT OF HATCHING EGGS, AS WELL AS POULTRY FOR PURPOSES OTHER THAN SLAUGHTER, AND THE STATE QUARANTINE PROHIBITED SUCH MOVEMENTS INTRASTATE FROM THE QUARANTINED AREA. THE GROWERS ALLEGE THAT THESE RESTRICTIONS SO ADVERSELY AFFECTED THEIR BUSINESSES THAT THEY WERE FORCED TO DISPOSE OF ALL OF THEIR TURKEYS AND EGGS. THE TURKEYS WERE EITHER DESTROYED OR MARKETED FOR HUMAN CONSUMPTION AND THE EGGS WERE SOLD TO COMMERCIAL BREAKERS. THE DISPOSITION OF THE FLOCKS AND EGGS WAS NOT ORDERED BY THIS DEPARTMENT OR THE STATE UNDER THE COOPERATIVE PROGRAM FOR THE CONTROL AND ERADICATION OF THE EXOTIC NEWCASTLE DISEASE. THE FLOCK OWNERS VOLUNTARILY DISPOSED OF THEIR FLOCKS AND EGGS BECAUSE OF THE ECONOMIC LOSSES INCURRED AND NOT BECAUSE OF KNOWN INFECTION OR DISEASE EXPOSURE IN THE FLOCKS.

WE ARE REQUESTED TO DETERMINE WHETHER THE FIVE GROWERS MAY BE INDEMNIFIED FOR THEIR LOSSES UNDER THE TERMS OF 21 U.S.C. 114A, OR, IN THE ALTERNATIVE, WHETHER THEY MAY BE COMPENSATED UNDER THE AUTHORITY OF SECTION 32 OF THE ACT APPROVED AUGUST 24, 1935, AS AMENDED, 7 U.S.C. 612C.

APPLICABILITY OF 21 U.S.C. 114A.

AS NOTED PREVIOUSLY, 21 U.S.C. 114A AUTHORIZES THE SECRETARY OF AGRICULTURE, INTER ALIA, TO PAY CLAIMS "GROWING OUT OF DESTRUCTION OF ANIMALS (INCLUDING POULTRY), AND OF MATERIALS, AFFECTED BY OR EXPOSED TO ANY SUCH DISEASE, IN ACCORDANCE WITH SUCH REGULATIONS AS THE SECRETARY MAY PRESCRIBE." REGULATIONS FOR THE APPLICATION OF 21 U.S.C. 114A IN CONNECTION WITH EXOTIC NEWCASTLE DISEASE APPEAR AT 9 CFR SECS. 53.1-53.10, AS AMENDED, 37 F.R. 134(JANUARY 6, 1972) AND 5689(MARCH 18, 1972). THESE REGULATIONS AUTHORIZE PAYMENT OF "THE EXPENSES OF PURCHASE, DESTRUCTION AND DISPOSITION OF ANIMALS AND MATERIALS REQUIRED TO BE DESTROYED BECAUSE OF BEING CONTAMINATED BY OR EXPOSED TO" THE DISEASE UNDER CERTAIN CONDITIONS (9 CFR SEC. 53.2(B)). AMONG THE CONDITIONS ARE THAT THE ANIMALS BE APPRAISED BY EMPLOYEES OF YOUR DEPARTMENT (ID. SECS. 53.3, 53.10(C)), AND THAT THE ANIMALS BE KILLED PROMPTLY AFTER APPRAISAL AND DISPOSED OF BY BURIAL OR BURNING, UNLESS OTHERWISE SPECIFICALLY PROVIDED, UNDER THE SUPERVISION OF SUCH EMPLOYEES. (ID. SEC. 53.4).

THE POSITION OF THE TURKEY GROWERS IS PRESENTED IN A MEMORANDUM DATED JULY 21, 1972, FROM JOSEPH D. TYDINGS, ESQUIRE, OF THE LAW FIRM DANZANSKY, DICKEY, TYDINGS, QUINT & GORDON, TO THE SENATE COMMITTEE ON AGRICULTURE AND FORESTRY. THIS MEMORANDUM, AT PAGE 4, SUMMARIZES THE GROWERS' ARGUMENT FOR APPLICATION OF 21 U.S.C. 114A AS FOLLOWS:

THE TURKEY BREEDER FLOCK OWNERS SHOULD BE INDEMNIFIED, AS AUTHORIZED BY 9 C.F.R. SEC. 53.2(B), BECAUSE (1) THERE WAS A QUARANTINE IMPOSED ON SEVERAL SOUTHERN CALIFORNIA COUNTIES (SEE 36 FED. REG. 25218(1971)) WHICH PROHIBITED THE INTERSTATE MOVEMENT OF POULTRY, EGGS, POULTRY CARCASSES, AND VARIOUS MATERIALS ASSOCIATED WITH THE POULTRY INDUSTRY; (2) THE TURKEY BREEDER FLOCKS IN QUESTION WERE EXPOSED TO EXOTIC NEWCASTLE DISEASE AS REQUIRED BY 21 U.S.C. SEC. 114A, 21 U.S.C. SEC. 134AB), AND 9 C.F.R. SEC. 53.2(B); AND (3) AS A RESULT OF THE AFOREMENTIONED THE TURKEY BREEDER FLOCKS WERE "DESTROYED," AS REQUIRED BY 21 U.S.C. SEC. 114A, 21 U.S.C. SECS. 134AB)(D), AND 9 C.F.R. SEC. 53.2(B) FOR COMPENSATION.

THE MEMORANDUM, AT PAGE 6, ELABORATES UPON THE CONCLUSION THAT THESE TURKEYS WERE EXPOSED TO THE DISEASE:

MR. RUSS BARNUM, WHO IS ACTING AS SPOKESMAN FOR THE INDEPENDENT TURKEY GROWERS, HAS ABSOLUTELY NO DOUBT THAT THE BIRDS WERE EXPOSED TO THE DISEASE. BARNUM WAS IN CONTACT WITH SEVERAL DISEASED RANCHES, I.E., POULTRY RANCHES WHERE THE DISEASE HAD BEEN DISCOVERED, AND HAD MADE SUBSEQUENT CONTACT WITH THE TURKEY RANCHES IN QUESTION. IN ADDITION, VEHICLES WHICH HAD BEEN IN CONTACT WITH CONTAMINATED MATERIALS SUBSEQUENTLY EXPOSED THE TURKEY BREEDER FLOCKS TO THE DISEASE. FINALLY, AIR CURRENTS, MIGRATORY BIRDS, AND OTHER ACTS OF NATURE WERE RESPONSIBLE FOR EXPOSING THE TURKEYS TO THE DISEASE. THEREFORE, ALTHOUGH THE TURKEYS WERE NOT CONTAMINATED BY THE DISEASE, THEY WERE EXPOSED TO IT. IT SHOULD ALSO BE NOTED THAT THE ADVISORY COMMITTEE, A GROUP OF SCIENTISTS WHO PERIODICALLY ADVISE USDA ON VARIOUS MATTERS, CHAIRED BY DR. BEN POMEROY OF THE UNIVERSITY OF MINNESOTA, WAS NOT ASKED FOR ITS OPINION ON THIS MATTER, BECAUSE APPARENTLY USDA WAS AWARE THAT THE ADVISORY COMMITTEE WOULD STATE THAT THE TURKEYS HAD BEEN EXPOSED TO THE DISEASE.

ON THE MATTER OF DESTRUCTION OF THE FLOCKS, THE MEMORANDUM, AT PAGE 7, ADOPTS THE FOLLOWING ARGUMENT:

THE TURKEY BREEDER FLOCK OWNERS HAVE BEEN VICTIMS OF "CONSTRUCTIVE DESTRUCTION," I.E., THERE HAS BEEN DESTRUCTION AS AN ECONOMIC FACT OF LIFE ALTHOUGH PERHAPS THERE WAS NOT ACTUAL DESTRUCTION.

THERE IS NO PRACTICAL DIFFERENCE BETWEEN THE DEPARTMENT OF AGRICULTURE SEIZING AND DESTROYING CHICKENS STRICKEN OR EXPOSED TO A DANGEROUS, COMMUNICABLE DISEASE COVERED BY THE STATUTES IN QUESTION AND IMPOSING A QUARANTINE ON A CERTAIN AREA, INCLUDING A PROHIBITION ON THE INTERSTATE OR INTRASTATE (OUTSIDE THE QUARANTINE AREA) MOVEMENT OF TURKEY HATCHING EGGS WHICH "FORCES" THE TURKEY HATCHING EGG PRODUCERS TO SELL THEIR BIRDS TO PROCESSORS, DROWN THEIR BIRDS, OR SELL THEIR EGGS TO COMMERCIAL BREAKERS, ALL OF WHICH ARE DONE AT SUBSTANTIAL LOSSES. ALTHOUGH THE TURKEY GROWERS WERE NOT REQUIRED TO DESTROY THEIR BIRDS OR THEIR HATCHING EGGS, THE RESULT WAS ESSENTIALLY THE SAME BECAUSE OF THE QUARANTINE. THE TURKEY FLOCK OWNERS, IN ORDER TO REDUCE THEIR SUBSTANTIAL LOSSES, EITHER SOLD THEIR BIRDS TO PROCESSORS (FOR HUMAN CONSUMPTION), SOLD THEIR EGGS TO COMMERCIAL BREAKERS, OR DROWNED THEIR BIRDS. THIS, IN ESSENCE, IS THE "CONSTRUCTIVE DESTRUCTION," AND IT CAN BE ANALOGIZED TO THE DAIRY INDUSTRY. IF BECAUSE OF SOME DANGEROUS COMMERICABLE, DISEASE, A QUARANTINE IS IMPOSED ON A COUNTY, E.G., AND MILK FROM COWS CANNOT BE SHIPPED OUTSIDE THE QUARANTINE AREA TO ITS NORMAL MARKET, AND THE COWS ARE ULTIMATELY SOLD TO PROCESSORS AS MEAT, THE FARMER'S DAIRY BUSINESS HAS BEEN CONSTRUCTIVELY DESTROYED. THE TURKEY GROWERS HAVE DONE ALL THAT IS POSSIBLE TO MITIGATE THEIR LOSSES, BUT, FOR ALL PRACTICAL PURPOSES, THE QUARANTINE DESTROYED THEIR FLOCKS. HENCE, THEY SHOULD BE INDEMNIFIED FOR THEIR LOSSES.

CONCERNING THE QUESTION OF EXPOSURE TO DISEASE, THE ACTING SECRETARY'S LETTER STATES:

*** THERE IS NO DEFINITION OF THE TERM "EXPOSED" IN THE STATUTORY PROVISION. THIS DEPARTMENT HAS DEEMED THE DETERMINATION AS TO WHETHER ANIMALS WERE "EXPOSED" TO A COMMUNICABLE DISEASE TO BE A MATTER OF PROFESSIONAL JUDGMENT BASED UPON AN EPIDEMIOLOGICAL INVESTIGATION AS TO THE INVOLVEMENT OF THE PARTICULAR ANIMALS WITH INFECTED ANIMALS OR PREMISES. ALL RELEVANT CIRCUMSTANCES ARE CONSIDERED, SUCH AS POSSIBLE CONTACT WITH INFECTION THROUGH THE MOVEMENT OF OTHER ANIMALS, AVIAN SPECIES, VECTORS, PERSONS, PRODUCTS, EQUIPMENT, OR VEHICLES, AS WELL AS OTHER FACTORS WHICH MIGHT BE RELEVANT, SUCH AS WEATHER. THE TERM "EXPOSED" HAS BEEN DEEMED TO RELATE TO SUCH A DETERMINATION WITH RESPECT TO PARTICULAR ANIMALS AND NOT TO RELATE TO ALL ANIMALS WITHIN A GEOGRAPHIC AREA UNDER QUARANTINE REGARDLESS OF THE HISTORY OF THE ANIMALS IN RELATION TO THE DISEASE. ALL ANIMALS IN A QUARANTINED AREA ARE CONSIDERED AS HAVING AN "UNKNOWN STATUS" UNLESS THEY ARE IDENTIFIED AS INFECTED ON THE BASIS OF CLINICAL SYMPTOMS, VIRUS ISOLATION, OR OTHER DIAGNOSTIC PROCEDURE, OR THEY ARE IDENTIFIED AS "EXPOSED" BASED UPON AN EPIDEMIOLOGICAL INVESTIGATION.

WITH SPECIFIC REFERENCE TO THE TURKEY FLOCKS HERE INVOLVED, THE LETTER STATES: "AFTER INVESTIGATION, REPRESENTATIVES OF THIS DEPARTMENT CONCLUDED THAT THERE IS NO EVIDENCE THAT THE FLOCKS WERE IN FACT EXPOSED TO EXOTIC NEWCASTLE DISEASE***." ADDITIONAL MATERIALS PROVIDED TO US BY YOUR DEPARTMENT INDICATE THAT EACH OF THE RANCHES HERE INVOLVED WAS VISITED AT LEAST TWICE BY FEDERAL OFFICIALS. THE ACTING SECRETARY'S LETTER ALSO STATES WITH REFERENCE TO APPLICATION OF 21 U.S.C. 114A:

NEITHER IS THE TERM "DESTRUCTION" DEFINED IN THE STATUTE. THE TERM IS USED IN THE REGULATIONS TO RELATE TO THE DISPOSITION OF ANIMALS SPECIFICALLY FOUND TO BE INFECTED WITH OR EXPOSED TO A COMMUNICABLE DISEASE AND WHICH ARE ORDERED TO BE DISPOSED OF BY THE FEDERAL OR STATE REPRESENTATIVES COOPERATING IN THE CONTROL AND ERADICATION OF DISEASE UNDER A COOPERATIVE AGREEMENT BETWEEN THIS DEPARTMENT AND THE STATE.

WE HAVE BEEN ADVISED BY THE OFFICE OF THE GENERAL COUNSEL OF THIS DEPARTMENT THAT, IN VIEW OF THE CIRCUMSTANCES OUTLINED ABOVE AND THE STATUTORY LANGUAGE AND LEGISLATIVE HISTORY THEREOF *** THERE IS SERIOUS QUESTION WHETHER THE TERM "EXPOSED" IS INTENDED TO AUTOMATICALLY APPLY TO ALL ANIMALS IN A QUARANTINED AREA AND THE AUTHORITY OF THE SECRETARY TO PAY INDEMNITIES UNDER THE PROVISIONS OF 21 U.S.C. 114A FOR "CONSTRUCTIVE DESTRUCTION" OR CONSEQUENTIAL DAMAGES RESULTING FROM THE IMPOSITION OF A QUARANTINE IS ALSO SUBJECT TO SERIOUS QUESTION.***.

ON THE BASIS OF THE INFORMATION PRESENTED TO US, WE MUST CONCLUDE THAT 21 U.S.C. 114A IS NOT BY ITS TERMS APPLICABLE TO THE TURKEY GROWERS HERE INVOLVED. IT IS CONCEDED THAT THE TURKEY FLOCKS AND EGGS OF THESE GROWERS WERE NOT AFFECTED OR CONTAMINATED BY EXOTIC NEWCASTLE DISEASE. WITH RESPECT TO THE QUESTION OF EXPOSURE TO THE DISEASE YOUR DEPARTMENT TAKES THE POSITION THAT SUCH DETERMINATIONS ARE A MATTER OF PROFESSIONAL JUDGMENT BASED UPON EPIDEMIOLOGICAL INVESTIGATION INVOLVING CONSIDERATION OF ALL RELEVANT CIRCUMSTANCES. THE MEMORANDUM ON BEHALF OF THE CLAIMANTS ALSO APPEARS TO APPROACH THE QUESTION OF EXPOSURE AS A MATTER OF SCIENTIFIC JUDGMENT BASED UPON EPIDEMIOLOGICAL FACTORS. THUS, THE MEMORANDUM ALLEGES THAT THE FLOCKS WERE EXPOSED BY CONTAMINATED VEHICLES, AIR CURRENTS, MIGRATORY BIRDS, AND OTHER ACTS OF NATURE. HOWEVER, YOUR DEPARTMENT'S EXPERTS PRESUMABLY CONSIDERED THESE AND ANY OTHER RELEVANT FACTORS IN CONCLUDING THAT THE FLOCKS WERE NOT EXPOSED. MOREOVER, THE MEMORANDUM FAILS TO PRESENT ANY EXPERT OPINION IN SUPPORT OF ITS ALLEGATION AS TO EXPOSURE. THE ONLY ASSERTIONS IN THIS REGARD ARE THAT MR. RUSS BARNUM, A SPOKESMAN FOR THE GROWERS, "HAS ABSOLUTELY NO DOUBT THAT THE BIRDS WERE EXPOSED TO THE DISEASE," AND THAT IF THE QUESTION HAD BEEN SUBMITTED TO YOUR DEPARTMENT'S ADVISORY COMMITTEE, THE COMMITTEE WOULD HAVE CONCLUDED THAT THE FLOCKS WERE EXPOSED. HOWEVER, THERE IS NO INDICATION THAT MR. BARNUM IS QUALIFIED TO MAKE EPIDEMIOLOGICAL DETERMINATIONS; AND THE ASSERTION AS TO WHAT THE ADVISORY COMMITTEE WOULD HAVE CONCLUDED MUST BE CONSIDERED SPECULATIVE AT BEST. IN ANY EVENT AGENCY ADMINISTRATIVE DETERMINATIONS - SUCH AS THE ONE HERE CONCLUDING THAT THE FLOCKS WERE NOT EXPOSED - ARE BINDING ON US IN THE ABSENCE OF SUBSTANTIAL EVIDENCE TO THE CONTRARY. WE FIND NO SUCH SUBSTANTIAL EVIDENCE TO THE CONTRARY IN THIS CASE.

APART FROM THE MATTER OF EXPOSURE, 21 U.S.C. 114A AUTHORIZES INDEMNITY PAYMENTS "GROWING OUT OF DESTRUCTION OF ANIMALS (INCLUDING POULTRY), AND OF MATERIALS *** IN ACCORDANCE WITH SUCH REGULATIONS AS THE SECRETARY MAY PRESCRIBE." AS NOTED PREVIOUSLY, DEPARTMENT OF AGRICULTURE REGULATIONS REQUIRE, INTER ALIA, APPRAISAL, DESTRUCTION, AND DISPOSAL UNDER THE SUPERVISION OF CERTAIN DEPARTMENT EMPLOYEES. IN THE PRESENT CASE, HOWEVER, THE TURKEY GROWERS SOLD THEIR FLOCKS AND EGGS ENTIRELY AT THEIR OWN INITIATIVE, WITHOUT ANY APPROVAL OR INVOLVEMENT ON THE PART OF YOUR DEPARTMENT'S EMPLOYEES. THEREFORE, IT APPEARS THAT THE ACTIONS TAKEN WITH RESPECT TO THE TURKEY FLOCKS AND EGGS HERE INVOLVED WERE NOT WITHIN THE NORMAL APPLICATION OF THE INDEMNITY PROVISION. HOWEVER, MR. TYDINGS' MEMORANDUM TAKES THE POSITION THAT EVEN IF THERE WAS NO "ACTUAL" DESTRUCTION, THE TURKEY GROWERS ARE THE VICTIMS OF A "CONSTRUCTIVE DESTRUCTION" SINCE, AS A RESULT OF THE QUARANTINE, THEY WERE FORCED TO DISPOSE OF THEIR FLOCKS AND EGGS FOR, IN EFFECT, SALVAGE VALUE. THUS, IT IS ARGUED, THERE IS NO PRACTICAL DIFFERENCE BETWEEN AN ACTUAL SEIZURE AND DESTRUCTION BY YOUR DEPARTMENT PURSUANT TO 21 U.S.C. 114A, AND THE IMPOSITION OF RESTRICTIONS UPON TRANSPORTATION OF FLOCKS AND EGGS WHICH ELIMINATED NORMAL MARKETS.

THE FACTS PRESENTED IN THE MEMORANDUM DO NOT DISCLOSE WHETHER THE TURKEY GROWERS MAY HAVE HAD ANY PRACTICAL ALTERNATIVES LESS DRASTIC THAN SELLING THEIR FLOCKS AND EGGS FOR SALVAGE. HOWEVER, ASSUMING THAT NO ALTERNATIVE EXISTED - AND, THEREFORE, THAT THE QUARANTINE HAD THE SAME PRACTICAL EFFECT AS AN ACTUAL DESTRUCTION - THE "CONSTRUCTIVE DESTRUCTION" ARGUMENT IS DIRECTED ENTIRELY AT THE QUARANTINE ASPECT OF YOUR DEPARTMENT'S EFFORTS TO COMBAT EXOTIC NEWCASTLE DISEASE. ON THE OTHER HAND, IT IS APPARENT THAT THE QUARANTINE PROGRAM IS SEPARATE AND DISTINCT FROM THE DESTRUCTION PROGRAM PROVIDED FOR UNDER 21 U.S.C. 114A AND 9 CFR, PART 53. THUS THE QUARANTINE PROGRAM IS FOUNDED UPON DIFFERENT AUTHORITIES - PRIMARILY 21 U.S.C. 123 AND 9 CFR, PART 82. THE SPECIFIC PURPOSES OF THE TWO PROGRAMS ALSO DIFFER. THE QUARANTINE PROGRAM IS IN THE NATURE OF A PREVENTIVE MEASURE DESIGNED TO INHIBIT THE DISSEMINATION OF DISEASE; WHILE THE DESTRUCTION PROGRAM IS CONCERNED WITH THE ACTUAL ERADICATION OF DISEASE WITHIN A QUARANTINE AREA. IN THIS REGARD IT IS NOTABLE THAT WHILE THE DESTRUCTION PROGRAM IS LIMITED TO ANIMALS AND MATERIALS AFFECTED BY OR EXPOSED TO DISEASE, A QUARANTINE UNDER 21 U.S.C. 123 MAY BE IMPOSED UPON A DETERMINATION, INTER ALIA, THAT THE CONTAGION OF A DISEASE OR VECTORS WHICH MAY DISSEMINATE DISEASE EXIST IN A CERTAIN AREA.

IN VIEW OF THE FOREGOING, WE BELIEVE THAT THE INDEMNITY AUTHORITY OF 21 U.S.C. 114A IS LIMITED TO THE ACTIONS SPECIFICALLY PROVIDED FOR IN THAT SECTION, I.E., IN EFFECT, THE SEIZURE AND DESTRUCTION BY YOUR DEPARTMENT OF ANIMALS AND MATERIALS ACTUALLY AFFECTED BY OR EXPOSED TO DISEASE. ARE AWARE OF NOTHING WHICH SUGGESTS THAT THIS INDEMNITY AUTHORITY IS DESIGNED FOR APPLICATION TO CLAIMS GROWING OUT OF OTHER ACTIONS TAKEN BY YOUR DEPARTMENT IN ITS GENERAL APPROACH TO THE CONTROL AND ERADICATION OF COMMUNICABLE DISEASES OF ANIMALS OR POULTRY.

APPLICABILITY OF 7 U.S.C. 612C (SECTION 32 OF PUBLIC LAW 74-320).

SECTION 32 OF THE ACT APPROVED AUGUST 24, 1935(PUBLIC LAW 74-320), CH. 641, 49 STAT. 750, 774, AS AMENDED, 7 U.S.C. 612C, APPROPRIATES CERTAIN SUMS TO BE MAINTAINED IN A SEPARATE FUND AND UTILIZED BY THE SECRETARY OF AGRICULTURE TO, INTER ALIA:

*** (3) RE-ESTABLISH FARMERS' PURCHASING POWER BY MAKING PAYMENTS IN CONNECTION WITH THE NORMAL PRODUCTION OF ANY AGRICULTURAL COMMODITY FOR DOMESTIC CONSUMPTION.***.

THE ACTING SECRETARY'S LETTER TO US POINTS OUT THAT CLAUSE (3) OF SECTION 32 WAS APPLIED IN MAKING INDEMNITY PAYMENTS TO REESTABLISH THE PURCHASING POWER OF CRANBERRY GROWERS FOLLOWING DEMORALIZATION OF COMMERCIAL MARKETS FOR THE 1959 CROP WHICH OCCURRED AS A RESULT OF PUBLICITY CONCERNING THE USE OF CHEMICAL WEED KILLERS ON SOME CRANBERRIES. IT IS ALSO STATED THAT OUR OFFICE PASSED UPON THE LEGALITY OF THE CRANBERRY PROGRAM (SEE B- 142279, MARCH 28, 1960), AND THAT NO SERIOUS OBJECTIONS TO THE PROGRAM WERE VOICED BY THE CONGRESS. HOWEVER, CONCERNING APPLICATION OF SECTION 32 TO THE TURKEY GROWERS HERE INVOLVED, THE ACTING SECRETARY STATES:

*** THERE IS A SIGNIFICANT DISTINCTION BETWEEN THE CRANBERRY SITUATION AND THAT OF THE TURKEY BREEDER FLOCK OWNERS. IN THE FORMER CASE THE WHOLE INDUSTRY THROUGHOUT THE UNITED STATES WAS INVOLVED, WHILE IN THE LATTER THERE ARE ONLY FIVE AFFECTED TURKEY PRODUCERS, LOCATED WITHIN A SMALL AREA OF CALIFORNIA. SECTION 32 REFERS TO FARMERS' PURCHASING POWER - IN THE PLURAL - AND TO THE NORMAL PRODUCTION OF THE AGRICULTURAL COMMODITY FOR DOMESTIC CONSUMPTION. THE SECTION APPEARS TO CONTEMPLATE A SITUATION IN WHICH THE ENTIRE CROP OF A COMMODITY IS IN DISTRESS, RATHER THAN A SITUATION INVOLVING A MINOR SEGMENT OF THE AGRICULTURAL INDUSTRY.

IT MAY ALSO BE NOTED THAT SINCE THE CRANBERRY PAYMENT PROGRAM WAS CONDUCTED BY THIS DEPARTMENT FOR THE 1959 CROP OF CRANBERRIES, CONGRESS HAS SINCE SEEN FIT TO ENACT SPECIFIC LEGISLATION IN EACH SUBSEQUENT INSTANCE WHERE INDEMNIFICATION FOR FARMERS WAS CONSIDERED APPROPRIATE. FOR EXAMPLE, IN THE CASE OF MILK, CONGRESS AUTHORIZED A MILK INDEMNITY PROGRAM TO COMPENSATE FARMERS AND OTHERS WHO HAVE SUFFERED LOSSES AS A RESULT OF REMOVAL OF THEIR DAIRY PRODUCTS FROM COMMERCIAL MARKETS BECAUSE SUCH PRODUCTS CONTAIN RESIDUES OF CHEMICALS REGISTERED AND APPROVED FOR USE BY THE FEDERAL GOVERNMENT AT THE TIME OF SUCH USE. (7 U.S.C. 450J) SIMILAR AUTHORITY HAS BEEN PROVIDED FOR THE INDEMNIFICATION OF BEEKEEPERS "IN CASES IN WHICH THE LOSS OCCURRED AS A RESULT OF THE USE OF ECONOMIC POISONS WHICH HAD BEEN REGISTERED AND APPROVED FOR USE BY THE FEDERAL GOVERNMENT." (7 U.S.C. 135B NOTE.) ACCORDINGLY, EVEN IF THE PROVISIONS OF SECTION 32 ARE CONSTRUED TO BE BROAD ENOUGH TO PERMIT PAYMENTS TO THE TURKEY GROWERS HERE INVOLVED, THE SUBSEQUENT SPECIFIC LEGISLATION AUTHORIZING INDEMNIFICATION FOR CERTAIN LOSSES MAKE IT QUESTIONABLE WHETHER THE GENERAL AUTHORITY OF SECTION 32 REMAINS AVAILABLE FOR SUCH PURPOSE.

WE AGREE THAT, UNLIKE THE CRANBERRY SITUATION, THE PROBLEM OF THE TURKEY GROWERS HERE INVOLVED CANNOT - AT LEAST AT THE PRESENT TIME - BE CHARACTERIZED AS A GENERAL PROBLEM AFFECTING THE ENTIRE INDUSTRY. MORE FUNDAMENTALLY, WE ALSO AGREE THAT, IN VIEW OF THE FACT THAT APPLICATION OF SECTION 32 TO THE CRANBERRY SITUATION WAS ITSELF SUBJECT TO SOME DOUBT, B- 142279, SUPRA, P. 6, AND THAT SUBSEQUENT INDEMNITY PROGRAMS HAVE BEEN FOUNDED UPON SPECIFIC LEGISLATION, IT IS QUESTIONABLE WHETHER THE GENERAL AUTHORITY OF SECTION 32 REMAINS AVAILABLE FOR INDEMNIFICATION PAYMENTS OF THE TYPE HERE CONTEMPLATED.

FOR THE REASONS STATED HEREIN, IT IS OUR OPINION THAT NEITHER 21 U.S.C. 114A NOR 7 U.S.C. 612C AUTHORIZES INDEMNITY PAYMENTS UNDER THE CIRCUMSTANCES SET FORTH IN THE ACTING SECRETARY'S LETTER AND THE MATERIALS ENCLOSED THEREWITH.